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Judge orders Justice Dept. to acknowledge courts’ power

A federal judge in Texas has demanded the Department of Justice acknowledge courts’ authority to strike down acts of Congress, after President Obama said Monday that a Supreme Court ruling against his signature health care law would be an “unprecedented” display of “judicial activism.”

Fifth Circuit Court of Appeals Judge Jerry E. Smith, appointed by Republican President Ronald Reagan, said Tuesday that Obama’s statements “troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review.”

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Smith was hearing oral arguments in a case challenging expansion restrictions on physician-owned hospitals, an ancillary provision of the national health care law passed in 2010. Addressing Justice Department attorney Dana Lydia Kaersvang, Smith ordered the department to submit by midday Thursday a three-page, single-space memorandum that makes “specific reference to the president’s statement and … to the position of the attorney general and the Department of Justice.”

The request struck federal courts experts as unusual and out-of-line.

“What Judge Smith did is bizarre and highly inappropriate,” said Brian Wolfman, the former director of the Public Citizen Litigation Group. “It’s past the bounds of the proper exercise of judicial power, just to make a political point.”

“It’s a silly exercise,” added Susan Low Bloch, a law professor at Georgetown University. “It’s like asking a second-grader to write on the chalkboard, ‘I will not chew gum. I will not chew gum.’”

Last week, the Supreme Court heard three days of oral arguments about the constitutionality of the health care law. The court is expected to make a ruling in June.

The Obama administration has said consistently that it expects the court to uphold the law, a position the president repeated Monday during a press conference in the White House Rose Garden.

“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” Obama said. “And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example.”

Some conservative commentators, to whom Obama referred as a group, characterized the president’s message as an attempt to bully the Supreme Court into a favorable ruling. On his radio program Tuesday, Rush Limbaugh called the president a “thug” and said “it is hilarious to hear Obama arguing, threatening, warning justices of the Supreme Court that the individual mandate is constitutional. It isn’t.”

The White House has declined to comment specifically on Smith’s order, but Obama did address critics generally during his speech Tuesday at the annual meeting of the Associated Press in Washington.

“The point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it,” Obama said, “but it’s precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.”

Both Wolfman and Bloch said they expect the Department of Justice to submit the memo.

“They could seek review from the Supreme Court,” he said, “but rather than get into further kerfuffle, they’ll probably comply. But it is demeaning to make high-ranking lawyers go through this kind of exercise.”

Callum Borchers can be reached at callum.borchers@globe.com. Follow him on Twitter @callumborchers.
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